United States v. Mendoza , 388 F. App'x 359 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4396
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN MENDOZA, a/k/a Roberto Landin Uriosti, a/k/a Papa,
a/k/a Ruben,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00590-CMC-1)
Submitted: June 24, 2010 Decided: July 16, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON, TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. James Chris Leventis, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Mendoza appeals his 360 month sentence imposed
following his guilty plea to conspiracy to possess with intent
to distribute and to distribute five kilograms or more of
cocaine, fifty grams or more of cocaine base and a quantity of
marijuana, in violation of 21 U.S.C. §§ 841, 846 (2006) (Count
1), and operation of an illegal money transporting business, in
violation of 18 U.S.C. § 1960 (2006) (Count 49). Appellate
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), questioning whether the district court erred in
overruling Mendoza’s objections to the application of a two
offense level enhancement for possession of a dangerous weapon
and the drug quantity attributed to him in the presentence
report, as well as whether Mendoza’s sentence was substantively
reasonable, but concluding there are no meritorious grounds for
appeal. The Government has not filed a brief and Mendoza has
not filed a pro se supplemental brief. We affirm.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). Appellate courts
are charged with reviewing sentences for both procedural and
substantive reasonableness. Id.2
In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Gall, 552 U.S. at 49-50.
We then determine whether the district court failed to consider
the 18 U.S.C. § 3553(a) (2006) factors and any arguments
presented by the parties, treated the guidelines as mandatory,
selected a sentence based on “clearly erroneous facts,” or
failed to sufficiently explain the selected sentence. Id. at
51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Finally, this court reviews the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
552 U.S. at 51).
We afford sentences that fall within the properly
calculated guidelines range a presumption of reasonableness.
E.g., United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).
Such a presumption can be rebutted only by showing “that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks and citation omitted).
The first two issues raised in the Anders brief
challenge the procedural reasonableness of Mendoza’s sentence.
First, Mendoza’s counsel contends that the district court erred
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in overruling Mendoza’s objection to the application of a two
level enhancement for possession of a dangerous weapon. Under
USSG § 2D1.1(b)(1), a defendant’s offense level is increased by
two levels if the defendant possessed a dangerous weapon during
the offense. The commentary to USSG § 2D1.1 prescribes that the
enhancement “should be applied if the weapon was present, unless
it is clearly improbably that the weapon was connected with the
offense.” USSG § 2D1.1 (cmt. n.3). After reviewing the record,
we find that the district court did not abuse its discretion in
overruling Mendoza’s objection and applying a two level
enhancement for possession of a dangerous weapon. Additionally,
the district court’s finding that Mendoza was responsible for
fifty to 150 kilograms of cocaine is amply supported.
Finally, Mendoza’s attorney challenges the substantive
reasonableness of the district court’s 360 month sentence, in
light of the fact that Mendoza had no prior criminal record,
pled guilty, and was forty-seven years of age and suffering from
both cancer and diabetes. However, after reviewing the record,
we find that the district court’s sentence was substantively
reasonable.
Pursuant to Anders, we have reviewed the remainder of
the record and found no meritorious issues for appeal.
Accordingly, we affirm the judgment of the district court. This
court requires that counsel inform his client, in writing, of
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his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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